Summary
holding that when there is no evidence to support an issue, no charge should be given thereon
Summary of this case from Ament v. Reassure America Life Ins. Co.Opinion
No. 32115
Decided March 14, 1951.
Motor vehicles — Traffic regulations — Assured clear distance ahead — Distance measured, how — Violation of rule measured, how — Charge to jury predicated on violation of rule — Should not be given, when — Pedestrian crossing street at intersection — Suddenly enters path of motor vehicle approaching at right angle — Exercise of care — Ability to avoid collision — Section 6307-21, General Code.
1. The "assured clear distance ahead," referred to in Section 6307-21, General Code, constantly changes as the motorist proceeds and is measured at any moment by the distance between the motorist's car and the limit of his vision ahead, or by the distance between the motorist's car and any intermediate discernible static or forward moving object in the street or highway ahead constituting an obstruction in the motorist's path or lane of travel.
2. Violation of the assured-clear-distance-ahead rule consists of the operation of a motor vehicle at a greater speed than will permit the operator thereof to bring it to a stop within the assured clear distance ahead, unless such assured clear distance ahead is, without his fault, suddenly cut down or lessened by the entrance within such clear distance and into his path or lane of travel of an obstruction which renders him unable, in the exercise of ordinary care, to avoid colliding therewith.
3. Where a pedestrian crossing a street intersection enters the path or lane of travel of a motor vehicle approaching the intersection at a right angle to the path of the pedestrian and the pedestrian by his act enters suddenly the vehicle operator's assured clear distance ahead, at a point less distant than the forward limit thereof, and is struck by the vehicle, a charge to the jury in a personal injury action by the pedestrian against the operator predicated on a violation of the assured-clear-distance-ahead rule should not be given, unless there is evidence tending to show that the pedestrian came into the operator's assured clear distance ahead at a point sufficiently distant ahead of the motor vehicle as to have permitted the operator, in the exercise of ordinary care, to have stopped his motor vehicle before striking the pedestrian.
APPEAL from the Court of Appeals for Lucas county.
This is an action for damages for personal injuries sustained by the plaintiff before daylight on November 8, 1947, when he was struck while crossing a Toledo, Ohio, street intersection by a car operated by the defendant.
Central avenue, a state highway and main thoroughfare in that city, extends east and west and is intersected from the south by Auburn avenue which dead-ends into the south side of Central avenue. This intersection is located in a semiresidential district and Woodland Cemetery lies on the north side of Central avenue opposite the T intersection of these streets. There is an entrance to the cemetery from the north side of Central avenue, which entrance is almost opposite the center of Auburn avenue.
Traffic at this intersection at the time of the accident was controlled by four electric signal lights, one of which was located on each of the four corners of the intersection. The traffic light located north of Central avenue and east of the cemetery entrance driveway is visible to the south and controls pedestrian and vehicular traffic moving north on Auburn avenue into the intersection which it makes with Central avenue. The light located on the north side of Central avenue and west of the cemetery entrance driveway is visible to the east and controls pedestrian and vehicular traffic moving west on Central avenue. The four traffic lights are synchronized, so that when the lights on the southeast and northwest corners of the intersection governing traffic moving east and west on Central avenue are green those on the northeast and southwest corners of the intersection governing traffic moving north and south are red and vice versa. These lights are timed to display a green signal for Central avenue traffic for 35 seconds and then change, with a two-second yellow-light interval, to a green signal lasting 25 seconds for Auburn avenue traffic.
The testimony discloses that at the time of the accident the defendant, age about 26, accompanied by two companions, one of whom was riding in the front seat with him, was operating his car westward on Central avenue, being at the time under the control of the northwest traffic light, and proceeding through the intersection in question at the rate of from 20 to 25 miles per hour. It was dark and foggy that morning.
The plaintiff, age 71, on his way to work, proceeded on foot across Central avenue from south to north on the west side of the intersection, either on the crosswalk or a few feet west of it, and had reached a point near the north side of Central avenue.
When defendant's automobile was either almost through the intersection or just leaving it and the plaintiff was within five to ten feet or a half-car length from the north curb of Central avenue, plaintiff was struck a few feet west of the crosswalk by the right front part of defendant's car.
The plaintiff, although considerably confused as to the status of the traffic lights, claimed that when he started across the intersection he had the green light; that he did not see defendant's car approaching from his right until it struck him. The defendant testified that he could see the intersection lights when he was several hundred feet east of the intersection, that the light for his lane of travel turned to green just before he entered the intersection and that when he was completely through or just leaving the intersection plaintiff suddenly ran in front of his car from a position five to ten feet ahead of the car and slightly to the left. The defendant applied his brakes and swerved his car to the left and center of the street, but was unable to avoid striking plaintiff who appeared to the defendant to be a few feet west of the crosswalk and near the north curb of Central avenue.
The court, in its general charge, instructed the jury on the subject of negligence of the defendant, contributory negligence on the part of the plaintiff and proximate cause. At the conclusion of the general charge, counsel for plaintiff requested the court "to charge the jury on the assured-clear-distance-ahead rule as prescribed in Section 6307-21 and to read to the jury General Code Section 6307-21 pertaining thereto." The court declined to so charge.
The jury returned a general verdict for the defendant and, in answer to interrogatories submitted by the defendant, found that the plaintiff was guilty of negligence which directly caused or directly contributed to the collision in which he was injured.
A judgment for defendant was entered on the verdict. A motion for a new trial was overruled.
An appeal was taken to the Court of Appeals on questions of law. That court reversed the judgment and remanded the cause to the trial court for a new trial.
The Court of Appeals in its appraisal of the facts said:
"The verdict is not manifestly against the weight of the evidence. It tends to show that the plaintiff was proceeding across the street against the red light and was not on the crosswalk."
The trial court, in its general charge, correctly instructed the jury as to alleged acts of negligence charged against the defendant relating to excessive speed, violation of duties as to right of way at the intersection, lookout for pedestrians using the intersection and failure to sound warning. The court also correctly instructed the jury on the issue of contributory negligence and on the issue of proximate cause.
The case is in this court by reason of the allowance of a motion to require the Court of Appeals to certify its record for review.
Messrs. Doyle, Lewis Warner, Mr. D.L. Sears and Mr. Wm. C. Moore, for appellee.
Messrs. Effler, Eastman, Stichter Smith, for appellant.
The Court of Appeals reversed the judgment of the trial court on the sole ground that it refused to charge the jury upon the assured-clear-distance-ahead rule set forth in Section 6307-21, General Code.
Apparently the Court of Appeals took the view that if there was any evidence that the defendant entered the intersection on the red light or was otherwise proceeding in an unlawful manner, the assured-clear-distance rule would apply and should have been covered by the charge.
In the course of its opinion the Court of Appeals said:
"Although plaintiff became confused on the witness stand, his evidence tends to show that he was proceeding with the green light upon the westerly crosswalk at the time he was struck and that before entering the street he looked for approaching traffic. Evidence of the defendant tends to show that defendant had the green light as he entered the intersection, and when his car was passing the northwest traffic light (18 to 20 feet west of the crosswalk) plaintiff ran in front of it * * *.
"* * *
"* * * we reach the following conclusions:
"* * *
"3. In the absence of a showing of extraordinary circumstances surrounding an intersection, such as weather conditions, or that the driver is approaching or crossing in an unlawful manner, the doctrine of assured clear distance has no application to the driver approaching or crossing an intersection who may collide with a pedestrian.
"4. Where the evidence tends to show a violation by a driver of the right of way, conduct resulting in loss of right of way, or otherwise approaching or crossing in an unlawful manner, the doctrine of assured clear distance applies to such driver colliding with a pedestrian lawfully or unlawfully within or nearby the intersection.
"* * * Upon such evidence [that as plaintiff started across the street he saw the headlights a block or so away to his right and that he was proceeding on the crosswalk with the green light in his favor when he was struck], defendant either crashed the redlight or the light may have changed while plaintiff was on the crosswalk. In either event, defendant was not proceeding in a lawful manner, and had lost his right of way, and having collided with plaintiff, plaintiff was entitled to an instruction on the clear distance rule."
The Court of Appeals, in holding that the assured-clear-distance-ahead rule was applicable to the instant case, seems to have relied upon the holding of this court in Glasco v. Mendelman, 143 Ohio St. 649, 56 N.E.2d 210. In that case, however, the plaintiff attempted to cross a public street at a point other than a street intersection or crosswalk. The defendant's automobile was being driven in low gear and was from 75 to 100 feet distant from the plaintiff when the latter entered the street and lane of defendant's car, which raised a jury question whether the defendant, in the exercise of ordinary care, could have stopped his car in that distance before striking the plaintiff.
That part of Section 6307-21, General Code, which sets forth the assured-clear-distance-ahead rule is as follows:
"* * * and no person shall drive any motor vehicle, trackless trolley or streetcar in and upon any street or highway at a greater speed than will permit him to bring it to a stop within the assured clear distance ahead."
The most important factor within the purview of this statute is the phrase, "within the assured clear distance ahead." The "assured clear distance ahead" constantly changes as the motorist proceeds and is measured at any moment by the distance between the motorist's car and the limit of his vision ahead, fixed by the skyline, darkness, rain or snow, fog or smoke, a hill ahead, a curve in the highway, or by the distance between the motorist's car and any intermediate discernible static or forward moving object in the street or highway ahead constituting an obstruction in the motorist's path or lane of travel.
The violation of the assured-clear-distance rule consists of the operation of a motor vehicle at a greater speed than will permit the operator thereof to bring it to a stop within the assured clear distance ahead, unless such assured clear distance ahead is, without his fault, suddenly cut down or lessened by the entrance within such clear distance and into his path or lane of travel, of an obstruction which renders him unable, in the exercise of ordinary care, to avoid colliding therewith. Smiley v. Arrow Spring Bed Co., 138 Ohio St. 81, 33 N.E.2d 3, 133 A.L.R., 960.
Did the state of the evidence in the instant case call for a charge on the assured-clear-distance-ahead rule? Before the plaintiff came into the path or lane of defendant's car, the assured clear distance ahead was the limit of defendant's vision ahead afforded by the lights of his car.
It is clear in the instant case that the plaintiff was not within the defendant's view and lane of travel until a moment before plaintiff was struck. Plaintiff's sudden entrance into such lane of travel cut down the defendant's assured clear distance ahead and there was no evidence tending to show that the plaintiff was within such lane of travel a sufficient time or a sufficient distance ahead to make it possible for the defendant to avoid striking him.
Where a pedestrian crossing a street intersection does not do so at or beyond the forward limit of the assured clear distance ahead of an operator of a motor vehicle approaching such intersection at a right angle to the path of the pedestrian but suddenly comes into the path or lane of travel of the motor vehicle at an intermediate point in such assured clear distance ahead and is struck by such vehicle, a charge to a jury in a personal injury action by the pedestrian against the operator predicated on a violation of the assured-clear-distance-ahead rule should not be given, unless there is evidence tending to show that the pedestrian came into the operator's assured clear distance ahead at a point sufficiently distant ahead of the motor vehicle as to have permitted the operator, in the exercise of ordinary care, to have stopped his motor vehicle before striking the pedestrian.
Furthermore, no prejudice resulted to plaintiff by reason of the failure of the court to charge on the subject of assured clear distance ahead. In answer to interrogatories submitted without objection the jury found that the plaintiff's injury was caused either by his sole negligence or that he was guilty of negligence which directly contributed to his injury. If his injury resulted from his sole negligence the question of the negligence of the defendant is immaterial and the omission of a charge on the assured clear distance ahead could not be prejudicial. On the other hand, if the plaintiff was guilty of contributory negligence, it must follow that the jury also found the defendant guilty of negligence as to one or more of the grounds of negligence set out in the petition as to which the court properly charged the jury. Under such circumstances, since the jury found the defendant guilty of negligence on grounds other than a violation of the assured-clear-distance rule, it became immaterial as to whether he was guilty of such violation.
The judgment of the Court of Appeals is reversed, and that of the Common Pleas Court affirmed.
Judgment reversed.
WEYGANDT, C.J., ZIMMERMAN, STEWART, TAFT and MATTHIAS, JJ., concur.
I believe that the record is clearly susceptible of the construction and that the jury could properly have found that the plaintiff was walking across the street on the line of the sidewalk with the green light; that while so crossing he was within the vision of the defendant as defendant approached the crossing; that the plaintiff had reached the center of the street when defendant received the green light; and that plaintiff, when seen by defendant, was running only to avoid defendant's automobile, which was bearing down upon him. Application of the assured-clear-distance rule should not be ignored merely because defendant might also be charged with failure to yield the right of way. The defendant could be guilty of violating two or more duties concurrently as charged in the petition. In such event the plaintiff was entitled to have the jury instructed with respect to the assured-clear-distance rule as well as the duty to yield the right of way. Because of such failure, after proper request, to fully instruct the jury with respect to the charges of negligence of the defendant, as to which there was substantial evidence, the jury could not make a valid finding of contributory negligence. Bush, Admr., v. Harvey Transfer Co., 146 Ohio St. 657, 67 N.E.2d 851. The judgment of the Court of Appeals should be affirmed.